Constitutional Hill

August, 2010:

What do we talk about when we talk about “transformation”?

Aug 12th, 2010
by Pierre De Vos.
208 comments

Is it at all possible to write sensibly but critically about the way in which the concept of “transformation” has evolved in kleptocratic South Africa? “Transformation” has become a buzzword that is much bandied about and much abused, but few people explain what they mean when they use the word. Like mother hood and apple pie, it is assumed to be an unqualified human good and as such “transformation” is now used much like the rights in the Bill of Rights are used: as trumps to stop any political analysis, argument or the asking of any uncomfortable questions.

Back in 1998, a progressive American academic called Karl Klare wrote an extremely influential and since then much quoted article in which he argued that ours could be seen as a transformative Constitution. Klare argued that as a progressive supporter of the democratic project, one not only could but should interrepret our Constitution as a transformative document.

He claimed that it could be read thus for several reasons. First, he argued that the constitutional text was historically self-conscious, by which I took him to have meant that when interpreting and applying the Constitution, judges were allowed to keep in mind the history of oppression, struggle and the denial of human dignity out of which it was born.

When a judge has to decide whether the arrest, torture and detention of an ordinary citizen (or journalist) was lawful, she could do so with reference to the constitutional text that bans such lawlessness, yes, but also with the ever present and dark memory of the detention, torture and eventual murder of Steve Biko in mind. When a judge had to consider whether to grant an eviction order, she could take into account not only section 26(3) of the Bill of Rights but could also keep the memory of forced removals and the inhuman and degrading effects of that policy on ordinary people alive.

Second, the Constitution was transformative, Klare argued, because it contained an equality clause that explicitly endorsed corrective measures that would help to right the wrongs of past racial oppression. Moreover, it contained a set of social and economic rights which empowered courts to assist ordinary citizens to access the most basic services and benefits required to live a life with a semblance of human dignity.

Lastly, the Bill of Rights explicitly stated that it applied not only vertically against the state, but also horizontally against private individuals and institutions (which were so complicit in the enforcement of apartheid and benefited so hugely from it) and required judges to take into account the spirit and object of the Bill of Rights when interpreting legislation or developing the common law and customary law.

This vision of transformation is, in its way, a radical vision which has as yet not come to pass. It envisages a complete transformation of the legal system as well as a dismantling of the structures which still help to perpetuate the disgraceful racial and gender inequality in our society and continues to subjugate the majority of South Africans – both economically and socially.

Sadly, few lawyers and judges have embraced this vision of a transformative constitutional project. While most pay lip-service to the need for transformation and claim to endorse the transformative vision of the Constitution, it is as if the old had colonised the new by co-opting them in the opppression of the majority of citizens. The concept of “transformation” is now often used – so it seems to me – as a band-aid to hide and legitimise the continued injustice and inequality that is perpetrated by the old business elite and the new political and business elite.

Although more than half of all judges are now black, most judges still do not use the Constitution as they are entitled to do, to try and address the fundamental injustice inherent in our legal system. Many of the basic assumptions underlying the common law – the unqualified benefits of a free market, the alleged freedom to choose, the equal power of all roleplayers – are still vigorously enforced by both black and white judges – even when it benefit the business elite and the politicians and perpetuate the oppression and marginalisation of the masses of our people.

When a pensioner is stabbed and rushed to hospital and she is forced to sign an indemnity form by that hospital, most of our judges – black and white – will endorse the absurd fiction that while she was lying on a trolley, bleeding to death, she had exactly the same bargaining power as the hospital to enter freely into a contract. They will hence find that the Hospital could not be held liable for the negligent amputation of her arms and legs and dismiss any claim against the Hospital.

Real and deep transformation is the enemy of the elite – black and white - because if deep transformation is actually implemented, it will transform the very system that we all benefit from so handsomely, that allows us to drive to work in million Rand cars without having to step out into the streets where people are dying of hunger and disease. Why support deep transformation if one is benefiting from the system?

Politicians are particularly good at this kind of double speak about transformation. They shout and scream about the need for transformation, by which they usually mean the replacement of greedy, white, heartless, capitalists, with greedy black heartless capitalists (who are preferably their friends and relatives who will also help to enrich them and will assure that they benefit from the looting of state coffers).

It reminds one of the saying in the apartheid era that white English-speaking South Africans voted for the Progs of Helen Suzman, but went on their knees every night to thank God that the Nationalists were still in power to “protect” them from the black majority. The new elite can still be found on their knees, from where they can pay lip-service to the masses of our people and the need to address poverty while they stuff their pockets with the loot offered to them by more or less the same system that operated during the apartheid years.

Of course, many things have changed since the days when PW Botha wagged his finger at us on TV, mangled the English language beyond recognition and allowed his security services to torture and kill those South Africans who did not find him charming. The National Party is no more and on an emotional (and even legal) level we are all far more free than we used to be. Even if the new elite does not care much for anyone but themselves, they do not actively hate the majority of the population and do not sit up at night to think of ways to humiliate black South Africans – as seemed to have been the case with the apartheid nutters.

We now live in a democracy and the government knows that they need the vote of the majority of South Africans to continue in power, and they need to continue in power if they want to continue reaping the benefits of BEE deals, corrupt tenders and the wonderful benefits bestowed on them by that other Bible called the Ministerial Handbbook. A welfare net of sorts has therefore been created to provide some needy South Africans with assistance in the form of social grants and pensions. These grants and pensions keep the majority of South Africans from rising up and from overthrowing the state and the system which benefits only a few.

(That is why the DA’s support for a basic income grant makes sense: with such a grant in place, the haves may buy some time. It allows them to continue to insist that while “transformation” is important it should not be taken to mean that anything should really change - except for the colour of the skins of those who exploit the rest of the population.)

So, yes, things have changed. But they have not changed in the way and to the extent promised by the transformative constitution.

“Transformation” has become a catchphrase to justify greed and self-interest and prevent the fundamental changes needed to actually address the monumental poverty and the criminal gap in wealth and personal circumstances between the rich (more and more a non-racial rich) and the poor (which remains largely black).

When politicians or the emerging business elite bleat on about the need for transformation I chuckle bitterly but knowingly. What do they mean when they say this? Do they mean that we should continue as before but should just have less white people with their snouts in the trough and more black people benefiting from the spoils of a system that remains – in its essential structure at least – not much different from that which operated under apartheid?

What is transformation? Can one eat it and use it as a blanket at night to ward off the cold? Will it provide a roof over one’s head, clean drinking water and electricity and a job that will allow one to live with a semblance of dignity? Can one feed one’s children with transformation and send them to school on it? Can one get good medical care (I have not yet seen any pharmacy stocking transformation pills that will make us all healthy) and protect oneself and one’s loved one’s from crime with a transformation blanket? Don’t think so.

When Julius Malema talks about the need for a revolution, or when Jimmy Manyi talks about the need to speed up transformation, all while driving in an obscenely large cars and splashing out on the most expensive luxuries, why don’t we all just laugh (or maybe spit) in their faces and point out that these are words – only empty words – used to keep the majority of South Africans in their place: poor, powerless and ready to acquiesce in their own oppression.

Maybe we should ban anyone from using the word and find new words to talk about the need to change this country. “Transformation” does not cut the mustard. It has become a hollow and empty word, devoid of any real meaning.

Boiled chickens pretending to be plumed peacocks

Aug 10th, 2010
by Pierre De Vos.
176 comments

Suddenly there is a lot of (artificially whipped-up) hysteria about the media doing the rounds amongst certain politicians. They want to muzzle the media by introducing a Media Tribunal “with teeth” and are also hell bent on passing the Protection of Information Bill which will criminalize much of what goes for investigative journalism in this country.

When these politicians (who pretend to be hysterical about media “excesses” and “mistakes”) refer to the media, they usually mean those sectors of the printed media who sometimes carry articles that contain allegations of corruption, tender rigging, high-handed and heartless incompetence by politicians and senior officials, the wasting of tax payers money by Ministers who stay in 5 star hotels for 6 months because they are not happy with the bed in their official residence, the fathering of children out of wedlock by our President or articles that do not seem to endorse the National Democratic Revolution as interpreted by Julius Malema and his woodwork buddies.

They do not usually refer to the tabloids (who are now more widely read than the so called “serious” newspapers). This is of course because tabloids seldom report on the alleged work done by politicians, but often print stories about “moffies” who tricked men into having sex with them by wearing dresses and were then stabbed in the gat, church ministers who had allegedly raped congregants, women who allegedly tricked men into buying them expensive presents before running off with their best friends, alleged drug dealers who are terrorizing communities, tik addicts who had sold their mothers gold teeth to buy some drugs and gentlemen of a certain age who allegedly molested young boys.

Some of these stories in the tabloids are published on the basis of the flimsiest of evidence and often reek of bigotry, sexism, homophobia and other attitudes and values not in line with our Constitution. These tabloids sometimes indulge in the most unprofessional and destructive journalism, but as far as I know, not one politician has attacked the journalism practices by these tabloids – although the stories in the tabloids often destroy the lives and reputations of ordinary (often working class or poor) people on the basis of very shoddy journalism.

But because tabloids seldom report negatively on politicians or on party politics at all, they are never mentioned when politicians talk about the need for a media tribunal and the “excesses” and “mistakes” of the media. (Strangely they also do not refer to incidences where the SABC news had failed to report accurately on the booing of a Minister or had wrongly implicated a DA member in some wrongdoing – must have slipped their minds.)

If proof were necessary, this is proof enough that this absurd talk about how evil the media is and how it needs to be regulated for the sake of our democracy has absolutely nothing to do with any principle and everything to do with the most blatant and dangerous forms of self-interest on the part of some politicians. It is a bit like saying we need to stop people eating because they are starving. For the sake of our democracy we need more information and less regulation – not the other way around. Do not believe a word of this talk that the media is the greatest threat to our democracy. We all know that the greatest threat to our democracy is posed by the politicians and senior officials who are stealing our money and failing to address the poverty and vast discrepancies in wealth between rich and poor.

But hey, some people will believe almost anything. So the politicians are trying their luck in the hope that enough of us voters will be so stupid and lazy that we will believe their stories about the evils of the media and that we will not see through their hypocrisy. After all, how many members of the elite really cares if a working class gay man’s life is destroyed by a bigoted and untrue report in a tabloid that he is a child molester? That guy is just an ordinary person, does not drive in a BMW, never stays in the Mount Nelson, has no bodyguards, must do with the bed that was bought 30 years ago, and earns less in a month than the average Minister spends on one dinner party.

When the politicians talk about the need for the media to respect the dignity and privacy of people, they mean that they want the media not to report on scandalous and embarrassing behavior of politicians – even if it is true and in the public interest to do so. The politicians obviously do not care about the dignity and privacy of anyone reading a tabloid or anyone being reported on in a tabloid.

The hypocrisy inherent in these attacks on the “serious” media is therefore breathtaking. Politicians who look like plucked, boiled, turkeys are pretending to be proud, plumed, peacocks.

Of course the media sometimes get it wrong. They make mistakes, they have a tendency to get hysterical and see everything as a constitutional crisis or the end of the world as we know it, they can be sensationalistic and have the tendency to adhere to the motto: “when it bleeds it leads”. If they make mistakes they need to correct this, must apologise and in the most extreme cases must pay damages for defamation.

Some politicians say that the present legal avenues for redress are too expensive and cumbersome and that is why one needs a fast, cheap and efficient mechanism like a Media Tribunal to hold the media to account. Of course this can be said of almost any legal mechanisms to redress harm. At present it is rather expensive to prosecute corruption, so why don’t we just appoint a corruption tribunal to deal with the charges of corruption against President Zuma and dispense with this innocent until proven guilty stuff? Not going to happen, is it?

If the politicians were principled (I know this phrase might sound hilarious and unreal, but I am trying to keep a straight face while typing these words) and were not acting out of naked self-interest and greed, they would have insisted on other tribunals to deal with other excesses and mistakes in our society – most notably the excesses, mistakes and illegal behavior of politicians and senior officials.

It is very difficult to get a politician or a senior official to admit to a mistake and even more difficult to get that politician to correct the mistake. The difference is, of course, that while media reporting can arguably affect the dignity and reputation (if any) of one or two politicians or officials, the corruption, greed, laziness and sheer callousness of politicians and senior officials affect the lives of millions of South Africans. When politicians and officials do not do what we pay them to do, people go hungry, people become homeless, people get sick and die.

We can vote out the politicians, of course (just as we can decide not to buy a newspaper), but by the time the politicians have been kicked out, well 300 000 people might have died of Aids related illnesses or a hundred babies might have died because of a lack of hygiene in our hospitals. Yet the people responsible for these outrages are never going to be brought before any tribunal, are never going to be punished and, in all likelihood, will be given a promotion or at worst a pension for life.

So, please, before politicians start talking about the need for a Media Tribunal – as if this is the most important thing for our democracy – they should clamor for the institution of a Tribunal for politicians and officials where ordinary citizens could go to get these people fired and maybe thrown in jail when they fail us. I propose that such a tribunal should be staffed or appointed by members of the print media (as the ANC is proposing the Media Tribunal be staffed or appointed by members of Parliament). That should ensure that it is independent and impartial!

Now imagine anyone actually seriously making such a suggestion. Imagine the howls of protests from politicians and officials. Now see how these same politicians want to impose on others what they will never accept for themselves and smell, yes smell, the stinking rot of corruption and greed and know that this talk of a Media Tribunal is no more than the hypocritical maneuverings of an elite wanting to protect themselves from being exposed  as heartless, greedy and out of touch with the needs of the people they claim to love and profess to want to serve.

Somewhere in the wild, wild, East

Aug 5th, 2010
by Pierre De Vos.
209 comments

In 1963, the apartheid Parliament rushed through the General Laws Amendment Act, Number 37 of 1963. The Act applied retroactively to June 27th 1962 and was mainly aimed at ensuring that the ANC leaders arrested at Lilliesleaf Farm in Rivonia could be held in detention indefinitely or until they could be charged.

Under this General Law Amendment Act, the security police, also known as the Special Branch, were given the authority to arrest anyone they suspected of being engaged or involved in any act against the State and to hold them incommunicado for 90 days at a time. The Act was often used to detain people for longer periods. Detainees would be “released” for a few seconds before they were “re-arrested” and detained for another 90 days.

When this process of being released and then re-arrested proved to be too cumbersome, the government introduced and passed the 180-Day Detention Act (the Criminal Procedure Amendment Act, Number 96 of 1965). Eventually, this 180-day law would be replaced yet again by the Terrorism Act, Number 83 of 1967, which allowed the government to detain individuals indefinitely until all questions had been answered satisfactorily or no further purpose could be achieved by holding the detainees.

Thankfully, section 12(1)(b) of the South African Constitution now prohibits anyone from being detained without trial. We do not live in apartheid South Africa anymore and we all have rights now. The police are not allowed to detain or torture us. This means, as a general rule, a detained person must be charged or released at his or her first appearance in court. In terms of section 35 of the Bill of Rights (read with section 50 of the Criminal Procedure Act) if no charge is brought, the person must be released or may “be informed of the reason for his or her further detention”.

This implies that the Bill of Rights does allows for an unspecified period of detention of uncharged detainees – but only in the most exceptional circumstances. Where a terror suspect who might have planned blowing up the Union Building or assassinating the President, is arrested and charges are still being investigated against that suspect, he might be detained. However, the detained person retains the right to bail and the right to challenge the lawfulness of the detention. This will entitle a person to approach a court at any time to apply for trial or contest the lawfulness of the detention. Where prosecutors determine that there is no case against a detained person, it is illegal to continue detaining that person.

In the light of the above, the arrest and (at the time of writing) continued detention of Sunday Times journalist Mzilikazi wa Afrika seem quite shocking. The arrest and detention (somewhere in Mpumalanga) of wa Africa raise many serious questions about the commitment of the current government to uphold the rights of citizens and the possible abuse of the police to cover up corruption and intimidate the media.

At this point, one does not have sufficient information to know for certain that wa Africa is being held illegally in detention without trial – as alleged by the Sunday Times in a statement posted on heir website – and whether the Hawks have unlawfully arrested him for an ulterior purpose. Whether he is a thoroughly bad man who will one day be convicted of the most despicable crimes, or whether he is an innocent victim of the most flagrant abuse of state power, is not yet known.

Nevertheless, the fact that wa Africa co-wrote an article alleging that Police Commissioner Bheki Cele (what is it with South African Police Commissioners and the law?) signed a R500 million lease for the Police to rent a new building without following tender procedures, must make every reasonable South African very suspicious indeed. This ongoing saga raises several serious and disturbing questions.

Is it true – as reported by the media – that wa Africa was arrested for fraud because he was in possession of a fabricated letter – faxed to the Sunday Times – purporting to show that the Premier of Mpumalanga intended to resign? If this is the case, then wa Africa should never have been arrested as it is not a crime in South Africa to be in possession of a fraudulent letter.

Is it true – once again as reported in the media – that this morning prosecutors met with wa Africa’s lawyers and the prosecutors decided that he had no case to answer, but that the police then refused to release him? Is it further true that the police “held further discussions” with the prosecutors, who then decided to charge him after all? If this is so, why would prosecutors who had decided there was no case to answer change their minds? Was there unlawful interference in the work of the NPA and was unlawful pressure placed on prosecutors to have wa Africa prosecuted despite the fact that they do not believe that he has a case to answer.

Why was wa Africa arrested at all and why, at the time of writing, is he still being detained? It is extremely unusual for a suspect in an ordinary fraud case who has arranged with police to meet with them and who poses no flight risk and no immediate risk to the community, to be arrested and detained for two days without appearing in court. On the available evidence, at the very least, this arrest appears unnecessarily high-handed.

Is it pure co-incidence that wa Africa was arrested in this high-handed and seemingly unnecessary manner a day after the Police Commissioner Bheki Cele referred to him as a “very shady journalist” for co-writing the article in which it was hinted that Cele is corrupt? Even more bizarrely, this happened in the same week in which the previous police commissioner was sentenced to 15 years imprisonment for corruption. Someone a bit more suspicious than myself might wonder whether Cele had learnt his lesson from Selebi and was taking pre-emptive measures to avoid Selebi’s fate.

Hopefully, all these questions will be answered in a satisfactorily manner and it will turn out that the justifiable fears raised by the arrest and the subsequent detention of wa Africa were entirely misplaced. For the sake of our country and our future, I sincerely hope that this is the case. It would be rather scary once again to live in a country where the police does not act in terms of the law and where individuals who are critical of the state can be detained without trial.

To be honest, for the first time since we became free in 1994, I am running a bit scared.

More questions for Mbeki on Selebi

Aug 4th, 2010
by Pierre De Vos.
86 comments

When former US President Bill Clinton was confronted with allegations that he had sex in the Oval Office with the White House intern, Monica Lewinski, he went on national television and with his lower lip quivering (he can do that quivering-with-indignation-and-selfrighteousness look better than most politicians), he declared: “I did not have sexual relations with that woman”.

It turned out that this was a bare-faced lie. The American public forgave Clinton, perhaps because he lied about a personal matter and not – like Richard Nixon before him – about serious matters of state. Or perhaps the public forgave Clinton because the US economy was booming. Despite this, Clinton’s historical legacy will always remain tainted by the telling of this blatant lie – communicated with so much conviction that even his wife (who should have known better) claimed to have believed him.

Will South Africans, similarly, forgive former President Thabo Mbeki and even if they did, will his historical legacy always be tainted by evidence of, and allegations about, his mendacity? The sad fact is, the more we learn about Mbeki’s role in the Jackie Selebi case, the more we are confronted with unpalatable evidence that former President Mbeki was not a person with a strong and abiding commitment to the truth.

Selebi has now been convicted and sentenced for corruption. However, it is unclear whether the full truth about the events surrounding the Selebi case - including the events that led to the suspension of former National Director of Public Prosecutions, Vusi Pikoli after he issued an arrest warrant for Selebi – has been told.

On 9 November 2006, then President Mbeki wrote a letter to Pieter Groenewald, an MP in the National Assembly. Groenewald had written a letter on 7 November 2006, requesting President Mbeki to appoint a Judicial Commission of Inquiry to investigate various allegations of corruption leveled against Selebi. In the letter, Mbeki declined to appoint such a commission and wrote:

Up to now nobody within the state structures has informed me that there are any investigations affecting National Commissioner Selebi that are being conducted by anybody, including the DSO, (the Scorpions). I am certain that if there was such an investigation, or such an investigation was contemplated, I would have been informed accordingly. In this regard. I must emphasise that if any of our law enforcement or intelligence agencies felt that they had information that justified such an investigation, I would encourage them to do their work without let or hindrance, in keeping with their legal mandate….

I have the greatest confidence in National Commissioner Selebi. I am certain that whatever the rumour mill is saying about him, he will continue to do his critically important work with the same diligence, dedication and selflessness he has shown ever since we appointed him as National Commissioner of the SAPS.

The conviction and sentencing of Jackie Selebi demonstrates that the confidence expresssed in Selebi in the second paragraph of the letter quoted above turned out to be misplaced. It has now also emerged that the claim made in the first paragraph of Mbeki’s letter is difficult (if not impossible) to square with the known facts. In paragraph 257 and 258 of the Ginwala Inquiry Report, Ginwala made the following findings:

It is not disputed that Adv Pikoli met with the Minister and briefed her on the investigation into the National Commissioner of Police on 13 separate occasions: In March 2006, in August 2006, on 9 November 2006, on 16 November 2006, on 11 March 2007, on 13 March 2007, on 17 March 2007, on 28 March 2007, on 8 May 2007, on 25 June 2007, on 11 September 2007, on 18 September 2007 and on 23 September 2007. Following these meetings he furnished the Minister with two written reports on 19 March 2007 and 19 September 2007.

It is also common cause that Adv Pikoli met and briefed the President on the investigation against the National Commissioner of Police on 10 occasions: In March 2006, in August 2006, on 9 or 10 November 2006, on 14 November 2006, on 20 November 2006, on 11 March 2007, on 9 May 2007, on 20 May 2007, on 15 September 2007 and on 16 September 2007. The evidence is that he gave the President written reports on 7 May 2007 and 16 September 2007.

President Mbeki was therefore briefed about the investigation against Selebi on at least two occasions before he wrote the letter to Groenewald in which he claimed that no one “in state structures” had informed him about any investigation (or pending investigation) against Selebi. In fact, Mbeki met Pikoli for a third time to discuss the investigation against Selebi on the very same day that he wrote the letter to Groenewald. As this was a letter and not a national televised speech, one will never know if Mbeki’s bottom lip quivered while he was writing this letter.

This casts new doubt on the veracity of a letter purportedly written by Mbeki to the then Justice Minister Brigitte Mabandla on 17 September 2007 – 6 days before Pikoli’s suspension – about the Pikoli case. Mbeki’s office first refused to release the letter to the Ginwala Inquiry - claiming that it was privileged – but later relented and released the letter to Ginwala. The letter did not contain the smoking gun that Pikoli and his lawyers had expected. In part it reads (see paragraph 264 of Ginwala Report):

In view of the constitutional responsibilities of the president with regard to the Office of the National Commissioner of the police service, I deem it appropriate that you obtain the necessary information from the national director of public prosecution regarding the intended arrest and prosecution of the national commissioner. This would enable me to make such informed decisions as may be necessary with regard to the national commissioner.

I have always wondered about the authenticity of this letter. In the context of the known events,  the contents of this letter seem, to say the least, surprising. Pikoli had met Mbeki on 15 and 16 September 2007 to brief him on the Selebi matter and on his intention to arrest Selebi. Ginwala confirmed that at the first meeting on 15 September Pikoli informed Mbeki about the warrants obtained for the arrest of Selebi.

At this meeting on 15 September Pikoli was asked to prepare a report for the President on the impending arrest of Selebi, which Pikoli did. He handed the report to the President on 16 September and again discussed the matter of Selebi’s case with the President. Yet a day later Mbeki wrote a letter to the Minister of Justice asking her to obtain the necessary information from Pikoli about the intended arrest of Selebi – information which Ginwala found Pikoli had already provided to Mbeki the previous day.

What other information – not provided by Pikoli – did Mbeki need? The letter is rather vague and does not specify the nature of the information required by Mbeki. If Mbeki needed specific information not provided to him by Pikoli at the two meetings on the 15 and 16 September and in Pikoli’s report, why did Mbeki not stipulate in his letter to the Minister exactly what information he wanted to obtain?

Mbeki had been briefed 10 times about the investigation against Selebi. He had two meetings in two days with Pikoli about the arrest and also received a report from Pikoli about the arrest. Yet the day after these two meetings he wrote a letter in which he asked the Minister to obtain more information from Pikoli about the arrest without saying anything about the nature of the information required.

The Ginwala Inquiry Report may cast further light on the matter. After receiving the letter written by Mbeki on 17 September 2007, Menzi Simelane wrote a letter to Pikoli the next day (18 September 2007), which was signed by Minister Mabandla and sent to Pikoli. Ginwala comments as follows on this letter sent by the Minister to Pikoli (see paragraph 159 of the Report):

The letter prepared by the DG: Justice did not conform to the request from the President [in his letter] to the Minister dated 17 September 2007. I point out elsewhere in the report that the literal reading of the letter conveys a meaning that Adv Pikoli was to stop any plan to arrest and prosecute the National Commissioner of Police until the Minister was satisfied that there was sufficient information and evidence to do so. . .The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.

If I was an investigative journalist or a prosecutor, I would probe the necessity for the writing of this letter by Mbeki to Mabandla. Was it perhaps an after the fact fabrication to cover up a different letter written by Mbeki to Mabandla? I would wonder whether the “real” letter actually instructed Mabandla to issue an instruction to Pikoli to stop the arrest of Selebi (which would have been unlawful).

Remember, after receiving the letter from Mbeki, Simelane and Mabandla sent the letter to Pikoli which contained the instruction not to proceed with the arrest of Selebi. Why would the normally soporific and lethargic Minister suddenly ask her DG to write a letter containing an instruction which Ginwala found was probably unlawful, when all the President asked her to do was to get more information from Pikoli?

Why would Mabandla tell Pikoli on 23 September (when she asked him to resign and he refused and Mbeki then suspended him that same day): ”Vusi, it’s about integrity and one day I will speak” (see paragraph 281 of the Report)?

It does not make much sense to me. Could it be that poor Menzi Simelane drafted the letter (later signed by Mabandla) which ordered Pikoli not to arrest Selebi, because that is what the President had ordered them to do in a letter that was never produced at the Ginwala Inquiry and was replaced by a letter fabricated by the Presidency after the fact?

Of course, I have no idea whether this is what happened. I am not claiming that the letter provided to the Ginwala Inquiry was fabricated and have no hard evidence to suggest that it was. I am, however, posing questions about the events, which – in the light of all known facts – do not seem to add up.

In the light of the evidence that Mbeki was less than truthful about his knowledge about the investigation against Selebi, questions about what actually happened in those fateful few days will remain. Only Mabandla, Simelane or someone else in the Presidency could answer these questions and lay to rest the suspicions of duplicity at the highest level of government.

The Princess and the moon

Aug 3rd, 2010
by Pierre De Vos.
76 comments

One can learn a lot from reading the legal opinions provided to Ministers. This week I learnt a new word - longiloquent (meaning long-winded) – by reading a legal opinion provided to Lindiwe Sisulu, who is the Minister of Defence and is also known as The Princess.

I also learnt that when Ministers account to Parliament they are members of the executive fulfilling a constitutional function and that, when they do this, they are therefore not really “persons” bound by the Constitution at all. No wonder The Princess has been looking a bit otherworldly lately: according to her legal advisor, as Minister of Defence she has ceased being a person at all and has instead become some otherworldly creature who is not bound by the Constitution. (Sadly, the legal opinion is silent about whether the Minister only stops being a person when it is full moon or when she consults with her advisors.)

Wonderful stuff, this. I wonder if the legal advisor responsible for this fantastic piece of fiction has ever considered writing movie scripts for Hollywood. I suspect he or she (but probably “he” because the legal opinion is couched in the aggressive and haughty prose I associate with deeply wounded and angry men) would be great at writing movie scripts.

The legal opinion was written to justify the refusal of The Princess to account to Parliament as she is obliged to do in terms of the Constitution. The Defence Committee wants the Minister to produce two “interim reports” that she had commissioned about the state of the military. She has already acted on some of the recommendations contained in these reports, but for some bizarre reason (pride? something to hide?) she is refusing to provide the reports to the National Assembly committee.

Section 56 of the Constitution is pretty clear on this point as it states (in the wonderful plain language used throughout most of the Constitution) that the “National Assembly or any of its committees” may:

  1. summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
  2. require any person or institution to report to it;
  3. compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b);

Section 55, read with section 92 of the Constitution, also makes clear that any Minister is accountable to the National Assembly and that the National Assembly has a constitutional duty to exercise oversight over the work of a Minister. Members of the cabinet are accountable to Parliament collectively (which means they are accountable for decisions taken by the cabinet as an institution) and individually (meaning they are accountable to Parliament for decisions and actions they have taken themselves) “for the exercise of their powers and the performance of their functions”.

So when the Minister makes a decision as the Minister – whether it is full moon or not – (say by commissioning a report or adjusting the pay scales of soldiers) or fulfils her duties (by reading the report and proposing ways of dealing with its recommendations), the Minister is accountable to Parliament for this. In order for the National Assembly to fulfil its accountability and oversight function, it can rely on section 56 to obtain any information from the Minister regarding the management of her portfolio.

The piece of fiction prepared by the Minister’s legal advisor holds differently though. The “legal opinion” argues that because the “interim reports” had not yet been considered by cabinet (although they had been considered by the Minister and acted upon by her) they do not concern matters under her control. So, not only is the Minister not a person when she is a Minister, she is also a creature that can act on a report which she herself has commissioned without that report being under her control or without her performing any function as a Minister.

This is a miracle!

Besides, the argument (such as it is) ignores the fact that the Minister is not only collectively accountable to Parliament, but also individually accountable for her actions. So, while the Minister is not accountable to Parliament when she acts in her personal capacity (by having her hair done, say, or attending a wedding), she is individually accountable for what happens in her department and for decisions taken by her as Minister. She consequently has a constitutional duty to provide the National Assembly with the information it requires to help it exercise its oversight over the Minister’s actions as an individual Minister. Whether the cabinet has considered the report on which the Minister has already acted is therefore completely irrelevant.

The piece of legal fiction masquerading as a legal opinion also states that section 56 of the Constitution (mentioned above):

does not mean that ministers may be forced to produce documents will-nilly (sic). Any portfolio committee foolish enough to issue a summons to a minister on a matter pending before cabinet or the executive will be met with an iron-clad claim of executive privilege. Generally speaking, ministers take an oath to respect confidentiality of certain matters serving before cabinet. Until a matter has been discussed by cabinet and government position has been formulated, cabinet deliberations and candid and confidential matters before cabinet cannot be disclosed to parliamentary committees or anyone else.

God forbid that Ministers must willy-nilly provide information to Parliament. What next – will Parliament actually demand that Ministers come and talk to it? What an outrage! Who do these bloody Parliamentarians think they are? One would not be surprised if they think we live in a democracy and that Ministers are not Royalty who are above the law!

I suspect the person who wrote this document might not have been trained in South Africa, hence his or her reliance on the American concept of “executive privilege”, which does not exist in our law and is not mentioned in our Constitution. (Dick Cheney loved executive privilege and often used it to try and stop the US Congress from holding him to account.) Details about discussions that occur in the cabinet are of course confidential and Ministers should not divulge what was discussed in cabinet. Once a decision is made by cabinet, Ministers must defend those decisions and should not divulge information about the discussions that led to the decision. If they cannot defend the cabinet decision, they should resign or shut up.

Reports commissioned by the Minister (and already acted on by her) are obviously not covered by this rule because a report is not a cabinet discussion. Cabinet considers reports and pieces of legislation all the time and most of these reports or draft Bills are in the public domain before they are discussed by cabinet. The reports are public, but the discussions about the reports in cabinet are not.

There is a difference - even when the reports were commissioned by a Minister who is not a person and even when it is not full moon. The Parliamentary Committee is not asking the Minister to divulge secrets about what happened at cabinet discussions. They are asking for reports (already leaked to newspapers) commissioned by the Minister and acted upon by her. Whether these  reports will later be tabled at cabinet is irrelevant.

The interpretation of the Minister’s legal advisor would thwart the very essence of accountable government as any Minister who wished to hide something from Parliament would merely say that a matter had not been discussed yet by cabinet so it was protected by “executive privilege”. So, a Minister might be asked whether he had stayed in five star hotels for six months and he would respond that the issue had not yet been discussed by the cabinet so he is not allowed to say whether he stayed there and what it might have cost if he did. This is so absurd that, once again, it is the kind of fiction that bad Hollywood movies are made of.

In the end the issues here are not very difficult – despite the longiloquence (ha, there, I have used the word!) of the Ministers legal advisor. There are reports. The Minister commissioned them. She then acted on some of the recommendations in the reports. Parliament is asking for copies as they are entitled to do by the Constitution. The Minister is refusing to give Parliament what it wanst and what it is constitutionally entitled to. The Minister, with the support of her legal advisor, is thus unlawfully refusing to provide the reports as she is required to do by the Constitution.

Now, I do wonder who this legal advisor of the Minister might be. He or she sure is entertaining and longiloquent. Pity about the fact that he or she shows such a disdain for the Constitution and for our democratically elected Parliament.

Isn’t it all a bit too easy?

Aug 2nd, 2010
by Pierre De Vos.
66 comments

Isn’t it all just a bit too easy? Last week the four former Free State University students known as the Reitz Four were found guilty on a charge of crimen injuria by the Bloemfontein Magistrate’s Court for making a video in which they humiliated 5 workers who were probably old enough to be their mothers. The conviction, for the unlawful and intentional impairment of the dignitas of the workers, was welcomed by most political parties.

There was a collective sigh of relief from our leaders and from many members of the public: we can all now get “closure” about this “tragic” or “disgusting” incident, seemed to be the general view. Although the four men have maintained that they did not have the intention to humiliate the workers, they nevertheless pleaded guilty and were given suspended jail terms. But is it not all too easy?

(Searching the Internet, I noted that none of the stories I accessed actually contained the names of the five workers – unlike the names of the Reitz four which were mentioned in every article. Is this perhaps a subconscious erasure of the victims of this crime by the media? Are the victims supposed to remain nameless and faceless because they are “only” black, female, workers and not middle class white men? If the victims were blond, middle class you women, their names would probably have been mentioned in every report.)

Of course, punishing individuals who have broken the law is a good thing. Despite the fact that these men do not seem to want to admit that they really committed a crime and do not seem particularly sorry about what they did, and despite the fact that they will not go to jail (as those convicted of crimen injuria in South Africa are almost never sent to jail), it must give some satisfaction to see the law take its course and the four perpetrators being punished.

But is it not all a bit too easy?

By punishing the four, the rest of us can give a sigh of relief and go on with our lives. We do not have to wonder what kind of country produced these men, what kind of society and family structures, what kind of religious instruction and schooling, what kind of economic system which maintains a stark divide between bosses and servants were in place that made these men think that it was perfectly acceptable to humiliate fellow human beings: woman, the mothers of children.

Unlike us, these four men are criminals. In the words of a wonderful Afrikaans novel by Jeanne Goosen we can nod and say: “Ons is nie almal so nie” (“We are not all like that”) and continue with our lives.

Is this not a bit like the Truth and Reconciliation Commission (TRC) in which “perpetrators” were forced to come and account for their horrible deeds and the victims and families of victims could tell their stories of suffering and pain – as if only a small number of white people in South Africa were the perpetrators of apartheid and only a small number of black South Africa were the victims.

In reality, not only the few thousand victims and families of victims who testified before the TRC were the victims of apartheid. Every black South African who lived under a system that systematically humiliated and degraded human beings because of skin colour and denied human beings the opportunity to reach their full potential as human beings because of their skin colour, were the victims of apartheid.

Many white people do not like to hear this – either because they feel guilty or they are too blind and callous to acknowledge it – but all white people were the beneficiaries of the system of apartheid (and continue to be the beneficiaries because of the head start apartheid gave us) and almost all white people are implicated in the crime of apartheid.

Whether one voted for the National Party or not, whether one once signed a petition to free Nelson Mandela or took part in a march to protest the segregation of university residences, or made friendly chit-chat with the woman cleaning your house – one benefited from apartheid and one helped to prop up apartheid by not declining to enjoy its benefits, by living in whites only suburbs (unlike Nico Smit, a real hero), by going to whites only schools and taking jobs explicitly or implicitly reserved for white people.

Many black South Africans, also, do not want to think too hard about the apartheid days or want to rewrite the history of those years because they feel guilty and humiliated by the past and their role in it. They want to forget how so many collaborated with the apartheid state, became policemen and civil servants and home land administrators and politicians that helped prop up the apartheid system – because they had to get by and because they were scared and because they were not strong enough to resist.

As was the case with the TRC, individualising the actions  of the Reitz 4 lets the rest of us – black and white – off the hook. It divides us between the bad criminals and the rest of us who are good and blameless. It allows us not to think about our churches and our schools and what children learn there. It allows us not to think about family and friends and what we allow to be said or not to be said when we socialise with them (the racism, the sexism, the homophobia, the prejudice against foreigners that trip of their tongues and make us look away without saying anything) and what we allow our children to think and feel. 

It allows us – at least the members of the middle class who are increasingly both black and white – to go on driving in our nice cars and send our children to the best schools and benefiting from an economic system that condemns a majority of South Africans to grinding poverty with very little chance of escape. It allows us to say that there are a few very bad white people in this country (and a few corrupt politicians, too) but that the rest of us are not like them.

Maybe this is too easy.

We live in a rather sick country in which Ministers think that it is perfectly ok to live in Five Star Hotels at taxpayers expense while others are starving. A country in which businessmen and women make billion Rand deals and get huge bonuses and go back to their fortress houses and play with their dogs or even - if the little ones are lucky – with their children, while not far away some of our fellow South Africans do not have money to pay school fees for their children or, worse, do not have enough to eat. We drink Johnny Walker Black or Blue or Gold or sip Chardonnay and drive in the latest cars and deny the structural inequality which all middle class people benefit from – at least for now.

Maybe the stark reality is that that there is a bit of the Reitz 4 in all of us middle class South Africans (of all races) – us people with access to Internet and transport and food and warm and dry houses.

Of course it would be rather pathetic and completely unhelpful to look at this and become paralysed by guilt. Guilt is a useless emotion invented by religious leaders to make us feel bad about ourselves so that we will obey ridiculous rules sold to us as the Will of God. 

Far better would be to say: well, what are we going to do about this? How are we going to improve the schools and address the huge differences in quality of education of most township and most former Model C schools, how are we going to stop corrupt officials from stealing the money that was supposed to be used to build roads and water purification plants and buy textbooks? How are we going to get the politicians to be our servants and not our masters? What are we going to do as a nation to address the vast gap between rich and poor so that no one goes to bed hungry in this land of ours? HOw are we going to address the deepseated prejudices of ourselves and members of our families and of our friends?

Is that not the (admittedly, very difficult) conversation we should really be having? And in the light of these challenges, is the uproar about the Reitz 4 not a mere sideshow to make us feel better about ourselves because we are not like them.

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